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Notable Recent Publications - November, 2021

Notable Recent Publications features the latest empirical research and data related to indigent defense. Should you have suggestions, ideas for work that should be included, or trouble accessing any of the articles featured, please write to albdavies@smu.edu

Journal Articles 

"In this paper, we describe the development and initial testing of...a Choose-Your-Own-Adventure (CYOA) experiment depicting the entire legal process, in the context of a campus sexual assault allegation. Using data from 154 predominantly white (75%), college-age (M = 23.43, SD = 2.3), heterosexual (71%) male participant-defendants, we evaluate the advantages of the paradigm in capturing the complexity of the legal process, while generating strong participant immersion. Bayesian SEM analyses indicated interrelatedness among several participant decisions, highlighting the impact of self-assignment of guilt status and attorney advice on subsequent decisions. Participants also reported strong emotional investment in their character’s outcomes, perceptions of agency and control, as well as situational realism within the paradigm. Results show the promise of the CYOA as a cost effective, engaging, easily customizable paradigm with which to study criminal defendant decision-making."
 
The last decade offered advocates fleeting hope that the courts would step in to reform public defense. However, recent decisions by state courts—and the intransigence of the federal judiciary—have proven those prospects a mirage. In this essay, a courts’ researcher and advocate condemns federal and state jurists for their open and continuing refusal to address a constitutional crisis occurring daily in their own courthouses. Legislatures are proving powerless to fix the problem, too. If change is possible, it will come from the most unlikely partners in an adversarial legal system—prosecutors. Far from a wild notion, this initiative is already underway in several jurisdictions. Reform makes for strange bedfellows.

Samantha Bielen, Wim Marneffe, and Naci Mocan. Racial Bias and In-Group Bias in Virtual Reality Courtrooms. 64, Journal of Law and Economics.
We filmed videos of criminal trials using three-dimensional virtual reality (VR) technology, prosecuted by actual prosecutors and defended by actual defense attorneys in a real courtroom. This is the first paper that utilizes VR technology in a non-computer-animated setting. We alter only the race of the defendants, holding all activity in the courtroom constant, to create arguably perfect counterfactuals. Law students and economics students made conviction and sentencing decisions in these trials that differed only in defendants’ race. White evaluators are harsher toward minority defendants in both conviction and sentencing. Minority evaluators are harsher toward minorities in conviction but more lenient in assigning prison terms. This pattern of behavior leads to significant bias against minorities at all stages—conviction, prison sentence, and fine—which is partly a reflection of the numerical majority of the evaluators being white. The same racial bias is observed in the decisions of practicing attorneys. 

Chapters

Eileen T. Crehan & Frederick S. Ury, Legal Defense in Criminal Cases. In Fred R. Volkmar, Rachel Loftin, Alexander Westphal, and Marc Woodbury-Smith (eds), Handbook of Autism Spectrum Disorder and the Law, pp 127-14.
Navigating the criminal process as an autistic person can be particularly challenging due to procedural and structural aspects of the process that impact anxiety, sensory experiences, and social communication. This chapter will focus on five distinct phases of the criminal process: criminal investigation, arrest, pretrial, trial and post-conviction processes. For each phase, special considerations relating to autism spectrum disorder will be summarized and recommendations are offered.

Reports

Robert C. Boruchowitz, Vanesa Hernandez Rodriguez, and Jamie Wilson, "Appendix M: Public Defender Report", included in Race and Washington's Criminal Justice System: 2021 Report to the Washington Supreme Court, Fred T. Korematsu Center for Law and Equality.
[From the conclusion of Appendix M:] "Public Defenders are literally the protectors of their clients’ freedom. Their clients are disproportionately people of color. To ameliorate the disproportionate impacts of the criminal legal system, Washington needs to improve both funding for and oversight of public defense. Adequate funding, implicit bias training, and recognition of racial issues that affect public defense clients, including laws and policies that have disproportionate impacts, can make a difference for the thousands of clients a year facing loss of liberty in Washington. The state needs to provide defenders the resources to overcome the existing inequities in the criminal legal system."
 
Jeanette Husseman, William Adams, Andrew Davies, Heather Hall, Jon Lyon, and Cathy Hu.
Survey of Publicly Appointed Defense Attorneys: Design Study, NCJ 252676. Bureau of Justice Statistics.
"BJS had funded design work for a survey of attorneys providing criminal defense to indigent defendants under a solicitation called the Survey of Public Defenders: A Design Study. The project was later renamed to accurately reflect the potential respondents. This report describes the development work and cognitive testing for the survey instrument and addresses the challenges of identifying the appropriate universe, sampling, and nonresponse issues. It is based on work completed between 2016 and 2018."
 
Pamela Metzger, Jancy Hoeffel, Kristin Meeks, K., & Sandra Sidi, Ending Injustice: Solving the Initial Appearance Crisis. Deason Criminal Justice Reform Center.
['From the Director':] "Most Americans believe that, after an arrest, they will quickly appear before a judge, learn about the charges against them, and have an attorney assigned to defend them. Unfortunately, this is not always true. Instead, an arrested person can wait in jail for days, weeks, or even months before seeing a judge or meeting an attorney. Detention without access to courts or counsel strikes at the very core of our expectations about American criminal justice. But the Supreme Court neither guarantees a prompt initial appearance nor requires a lawyer’s help at that procedure. This report chronicles the resulting initial appearance crisis and highlights its devastating consequences. More importantly, it provides policymakers and advocates with actionable recommendations."

Marea Beeman, Rosalie Joy, and Michael Mrozinski, Review of the Aurora, Colorado, Municipal Defender System. National Legal Aid and Defender Association.
[From the Executive Summary:] "Established in 1989, the Aurora Public Defender’s Office (APDO) provides counsel to people facing charges in the Aurora Municipal Court. The U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance (BJA) funded the undertaking of an evaluation of the APDO through its Sixth Amendment Initiative.... The National Legal Aid & Defender Association (NLADA), a training and technical assistance (TTA) provider for BJA, conducted this evaluation in the first half of 2021. The report that follows details the assessment process, provides information gathered from various data sources and agencies, and issues findings and recommendations for strengthening municipal public defense and criminal justice in Aurora"

Conference Paper 

Autonomy is an important factor in explaining the performance of Public Defenders’ Offices (PDOs), organizations responsible for providing access to justice for vulnerable citizens. This is due to the fact that these organizations often directly litigate against the State in defense of quality public services for social vulnerable groups. The present study aims to test the impact of perceived autonomy on the perceived performance of Brazilian PDOs. To this end, we applied a questionnaire to bureaucrats from 27 Brazilian PDOs and analyzed the data using structural equation modeling. The variables observed include performance and autonomy, whose relationship is the focus of this work, in addition to the availability of resources, skills and accountability. The results indicate that these organizations should operate autonomously, away from political influences, so that they could perform their mission in the best way. The skills of bureaucrats are also a relevant factor for the performance of these organizations, as well as accountability. There was no significant relationship between the availability of resources and the perceived performance. The contributions of this study include obtaining evidence of empirical validity for measuring the constructs autonomy, availability of resources, skills and accountability, and their impact on PDOs’ performance.

Theses

Claire Ahlgren, Access to Publicly Funded Legal Aid in England & Wales and Sweden—A Comparative Study. Örebro Universitet.
"This essay compares access to publicly funded legal aid in England & Wales and Sweden. The first part of the essay compares how access to publicly funded legal aid has evolved since the mid-1900s to the contemporary legal aid regulations. It concludes that there are significant differences in organisation and delivery.... The second part of the essay compares scope and eligibility of the contemporary legal aid regulations. It concludes that both systems base their assessments on tests of means and merits.... The third part of the essay examines what influence the right to fair trial under Article 6 of the European Convention of Human Rights (ECHR) has had on access to publicly funded legal aid in England & Wales and Sweden.... The ECHR rather sets a minimum threshold of protection that the contracting states must offer, while giving them broad discretion to organise their domestic legal aid systems." 
 
Katherine Dunn, Are Defendant Characteristics Tipping the Scales of Justice in Cases Involving Plea Deals? A Multilevel Analysis Dunn. PhD Dissertation, American University.
"The present study...poses the following questions: (1) Does the race/ethnicity of the defendant influence the type of plea deal that attorneys believe they can obtain for their clients? (2) Does the gender of the defendant influence the type of plea deal that attorneys believe they can obtain for their clients? (3) Does the influence of defendant characteristics (i.e., race/ethnicity, gender) vary depending on the type of crime the defendant has been charged with? [A] sample of currently practicing public defenders working across the state of Virginia were surveyed using factorial vignettes. [T]he results...suggest that the type of plea deals attorneys feel they can obtain for their client is dependent not only upon the race/ethnicity of the defendant, but also their gender and the type of offense they have been charged with. The disparate impact of these effects were found to be strongest when examined across decisions related to incarceration length."

Data

[From the website:] "We gathered this data by calling multiple offices in the 50 largest cities in the United States, plus making sure we have at least one city from every state, for a total of 72 cities. While we’ve been able to gather enough data to release our research, we still welcome anonymous contributions to help further improve our data. Here’s what we’ve found: The average public defender salary in the United States is $66,182. This is slightly less than what we found for the average assistant district attorney starting salary. The highest starting salary is San Francisco which pays starting public defenders $131,000. The lowest starting salaries can be found in Louisville, Oklahoma City and Tulsa which each pay starting public defenders $45,000." See also: Low Pay a Deterrent to Would-Be Public Defenders (Law360).
 
Virginia Pre-Trial Data Project. Virginia Criminal Sentencing Commission.
[From the website:] "A cohort of 22,986 adult defendants charged with a criminal offense during a one-month period (October 2017) was developed. This cohort was not unique in terms of the number and types of defendants charged; therefore, the cohort was generalizable to and representative of any other month in Virginia. The cohort was tracked until final case disposition or December 31, 2018, whichever came first. The Project dataset contains over 700 variables for each of the 22,986 defendants in the cohort, such as demographics, pending charges, state or local probation status, nature of the October 2017 charge(s), bond type, release status, whether the defendant received pretrial services agency supervision, prior criminal history, risk level, and aggregate locality characteristics. Once compiled, the VCSC transferred the dataset to the Crime Commission for its ongoing study of Virginia's pre-trial process."
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